Government hides more and more, and taxpayers pay in many ways | Editorial

Morgan Cook

California law requires public records to be made promptly available, and allows 10 days to respond in certain situations, plus another 14 for more limited circumstances. In practice, the process can take longer, U-T Watchdog found in a project to mark the nationwide open government event known as Sunshine Week. Click through to see 17 requests that took San Diego agencies 100 days or more to fulfill.

Correction: This presentation has been amended from its original, which included 18 requests. See explanation on last slide.

California law requires public records to be made promptly available, and allows 10 days to respond in certain situations, plus another 14 for more limited circumstances. In practice, the process can take longer, U-T Watchdog found in a project to mark the nationwide open government event known as Sunshine Week. Click through to see 17 requests that took San Diego agencies 100 days or more to fulfill.

Mark 2017 on your calendar because if current trends continue and Tallahassee passes what's proposed this year, citizens face a tipping point in lost access to public meetings and public records needed to hold government accountable.

"I don't think we've seen an assault like we're seeing this year on the basic tenets of open government," says Barbara Petersen, president of the First Amendment Foundation and Florida's chief crusader for open government.

Florida's famous Sunshine Law, which guarantees your right of access, now has nearly 1,200 exemptions, with another 56 proposed this year. Since the media's last annual check-up on open government, we're sorry to report this Sunshine Sunday that things have gotten worse.

Under the cloak of protecting privacy, state officials are hiding more details about seniors killed in nursing homes, children killed in foster care and prisoners killed in prisons.

Under the guise of economic development and trade secrets, state law continues to hide how much public money is given companies for incentives and how much vendors are paid by contract. Given history, it should have come as no surprise to lawmakers that letting Enterprise Florida and Visit Florida do business behind closed doors would lead to monkey business behind closed doors.

At a national level this year, we watched Democratic presidential nominee Hillary Clinton, Vice President Mike Pence and now EPA Secretary Scott Pruitt explain their use of private emails for public business in their former government roles.

Florida Gov. Rick Scott has used personal email for public business, too. We only know this because a Tallahassee lawyer, in a lawsuit about the Governor's Mansion, found a series of private Gmail accounts that the governor and his staff set up to conduct public business. To settle that suit two years ago, taxpayers paid $700,000.

More recently on the Treasure Coast, Martin County commissioners were found to have "engaged in a pattern of violating the Public Records Act" by conducting public business on private email. As a result, county taxpayers learned two weeks ago that they must pay $371,800 for someone's attorney's fees.

It seems public officials never learn. And with last week's opening of the annual legislative session, storm clouds are here again.

Bad bills on tap in Tallahassee

Lawmakers are making another attempt to hide the names of people who want to lead one of Florida's public universities. Should this bill pass, expect a floodgate of bills to hide the names of applicants for other government positions, too. Want to know if a politician's brother has the inside track or if diversity matters in the candidate pool? Forget about it.

Another bill would shield photos or videos of someone being killed. Remember the video of those boot camp guards beating that teenager to death? Or that police officer shooting an unarmed black man in the back? Or that man charged with shooting five people to death at Fort Lauderdale-Hollywood International Airport? If this bill passes, you won't see such videos again.

There's even a bill to hide the names of people who witness a murder, presumably to encourage more people to come forward. But how would that work? Would witnesses wear a bag over their heads in court? Has no one heard of prosecutorial misconduct? Or unintended consequences?

The biggest threat to your right to know is Senate Bill 1004 and House Bill 843, which would let two members of a public board or commission (with more than five members) meet in private to discuss pressing issues, a proposal that would overturn 50 years of public policy. By the time citizens would know what politicians are up to, their chance for input would be long gone.

Senate sponsor Dennis Baxley of Lady Lake says the change is needed because elected officials who serve together "are afraid to even be hospitable, to appear at the same events, to go on any fact-finding trip, to ride in a car together" for fear of violating the Sunshine Law and landing in jail.

Baxley can't cite a single incident of someone landing in jail for such things, but as chairman of the Senate's Governmental Oversight and Accountability Committee, he wants to be proactive. If it were up to him, he'd repeal the Sunshine Law or at least a good chunk of it. "I think it overdoes it. I really really do. On some things, I think it inhibits good government."

Baxley's bombshell would supposedly prohibit politicians from taking votes in secret, but you'd have to trust them on that, because they'd have to keep no minutes or recordings. "Unless you have reason to be suspicious, you can't let that sour you," he told us. Does this Republican not remember President Ronald Reagan's advice? "Trust, but verify."

To verify, Baxley says you'd have to hire an attorney and depose the politicians under oath. Can you imagine?

A chilling effect on citizens

Plus, if another bill by Sen. Greg Steube of Sarasota passes, you'd have to prove "by a preponderance of evidence" that government officials intentionally violated the law to secure a guarantee of having your attorney fees reimbursed.

Having to pay your attorney fees is the only consequence now facing public officials who illegally withhold public records from you. If this hammer is weakened — changing the word "shall" to "may" — it will create a chilling effect on your ability to pursue the paper trail behind zoning decisions, school boundary changes or criminal justice, for example.

Steube and a chorus of politicians argue that a cottage industry has grown up around public records requests, involving lawyers who want to trip up government officials and force settlements, plus attorney fees. From what we know, only one such person continues this reprehensible practice. And media attorneys have volunteered to help any government targeted by this bad actor.

"But at the same time, how do you protect the rights of the 99.9 percent of people who are making public records requests because they really want the records?" asks Petersen.

Open government advocates have offered compromises. One would require five days notice — plenty of time for officials to respond — before a lawsuit can be filed. Another would prevent bad actors from getting attorney fees reimbursed if their real purpose was to trigger a violation of the Sunshine Law.

But citizens don't have lobbyists in Tallahassee. Governments do. So Steube's bad bill is rolling through committees.

These are turbulent times for people who watchdog government, including the media.

President Donald Trump calls the media "the enemy of the state," a label former Nazi and Soviet dictators used before imprisoning those who disagreed with them.

Trump also has said he wants to "open up the libel laws." Those laws require public officials to prove errors or false statements were published with "actual malice." According to case law, that means knowingly publishing falsehoods with "reckless disregard" for the truth.

If media companies like the Sun Sentinel get something wrong, we correct it.

If we show a bias, it is a bias for covering local news, something we deliver better than anyone else.

On the opinion page, our bias is to stand up for taxpayers and our community.

Admittedly, we've been critical of the Trump administration, as well as the Republicans who control Congress and the state Capitol.

But when Democrats ruled the roost, we were critical of them, too, including President Obama.

Here's what we said last year:

"The Obama administration has a terrible record on transparency. Its spokesmen are often unresponsive or hostile to press inquiries. Federal employees suspected of leaking information are subject to investigation, including lie-detector tests. …

"You see the attitude in the secretive behavior of former Secretary of State Hillary Clinton. After her appointment, she set up a private email server at her home, putting public records off limits. On the campaign trail, she has refused to release transcripts of her Wall Street speeches. Indeed, her reputation for secrecy goes back to her 1993 health care task force, her 2006 secret energy task force and her continued refusal to disclose foreign donations to her family's foundation."

We hope you agree this Sunshine Sunday that democracy depends on an informed citizenry and a watchdog media willing to speak truth to power.

If so, we hope you'll join our urgent call for elected leaders, especially those in Tallahassee, to keep the shades of government open and let the sunshine in.